The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, October 22, 2015

Judge Ungaro published in U.M. Law Review

From a historical perspective, 2014 was a pivotal year for the
youngest circuit court in the nation. Within a four-month period, three
new judges were confirmed and sworn in to serve on the Eleventh
Circuit—all having clerked for distinguished Eleventh Circuit judges and
all of them women. Judge Robin S. Rosenbaum, a former U.S. District
Judge, U.S. Magistrate Judge, and Assistant U.S. Attorney in the
Southern District of Florida, was elevated to the seat left vacant by
Judge Rosemary Barkett. Judge Julie E. Carnes, a former U.S. District
Judge and Assistant U.S. Attorney in the Northern District of Georgia,
assumed the seat vacated by now Senior Judge James Edmondson. And Judge
Jill A. Pryor, formerly a litigation partner at the Atlanta-based law
firm of Bondurant, Mixson & Elmore, holds the seat left vacant by
Judge Stanley Birch. This dramatic turnover of a quarter of the court’s
authorized judgeships transformed the Eleventh Circuit into one of the
most gender-balanced federal appellate courts in the country, with five
active female judges to the court’s six active male judges. There is no
doubt that the new judges will enjoy long careers in which they will
have ample opportunity to influence the development of the law of the
circuit. More immediately, however, their confirmations provide the
court with much needed relief. Traditionally, the Eleventh Circuit has
been among the busiest circuits, annually shouldering over 500 appeals
per judgeship. By December 2013, however, the court had four judicial
vacancies and found itself unable to staff its panels with at least two
Eleventh Circuit judges. This compelled Chief Judge Carnes to declare a
judicial emergency under 28 U.S.C. § 46(b). On October 17, 2014,
following the confirmations of the new judges, Chief Judge
Carnes issued General Order 42, vacating the emergency designation.
With the confirmation of the new judges, there are now eleven active
judges. But the Eleventh Circuit actually has twelve authorized
judgeships, the same number as when it was first created. While twelve
is a small number in relation to the population now served, and the
judges theoretically could request additional judgeships under the
judiciary’s own guidelines, Congress has declined to authorize any
additional appellate judgeships since 1990. Even if it were inclined to
do so, the Eleventh Circuit judges likely would not seek additional
positions; they have consistently voiced their opposition to expansion
of the court, citing the efficiency, collegiality, coherence, and
predictability in the development of law that come with a smaller court.
In 2014, the merit of those values was evident. Incredibly, in 2014,
6,087 appeals were filed and 6,239 appeals were terminated. Though
hindered by four judicial vacancies for the greater part of the year,
the court terminated 3,796 appeals on the merits and 356 through written
decisions, more than any other circuit on both an absolute and per
judgeship basis. Further, despite terminating more appeals per judgeship
than any other circuit, the court was able to maintain the speedy
administration of justice, ranking fifth among the twelve circuits in
median case turnover. This productivity, notable in and of itself in
light of the judicial vacancies, is more impressive considering the
breadth and importance of the issues considered.
As one might imagine, the court considered an array of substantive
and procedural issues in 2014. While the court did not issue any
blockbuster opinion matching the likes of Bush v. Gore or that
striking down the Affordable Care Act as unconstitutional, it did
consider a range of issues of first impression, including the scope of
medical malpractice liability on the high seas and the constitutionality
of enforcing “no loitering” signs posted by private individuals.
Moreover, the addition of the three female judges has ushered in a new
era of diversity on the court, which is likely to impact how the court
approaches the issues presented to it, particularly social issues.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.